Error and/or relief
On resentencing, it was error for the court to impose a sentence on the greater subdivision of the gun use enhancement when, at the original sentencing, it had imposed the lesser enhancement.
First Holding:
When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. The trial court may reconsider all its prior discretionary sentencing decisions. The Henderson rule however imposes a limitation on the court’s sentencing discretion. Under the Henderson rule, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.
Authority:
People v. Buycks (2018) 5 Cal.5th 857, 893
People v. Navarro (2007) 40 Cal.4th 668, 681
People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [upon remand for resentencing, the trial court has jurisdiction to modify every aspect of the defendant’s sentence]
People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]
People v. Hanson (2000) 23 Cal.4th 355, 357
People v. Vizcarra (2015) 236 Cal.App.4th 422, 431
People v. Henderson (1963) 60 Cal.2d 482, 495-497
Second Holding:
When a trial court pronounces an unauthorized sentence,such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement. The Serrato rule protects the People’s right to mandated, lawful sentences. The limitations of the rule rebut any appearance of vindictiveness. If an increase in penalty has no nexus to the original illegality in the sentence, the protection against vindictiveness is not applicable. The general rule applies that in California a harsher penalty may not be imposed after a successful appeal.
Authority:
People v. Serrato (1973) 9 Cal.3d 753, 764
People v. Price (1986) 184 Cal.App.3d 1405, 1413
People v. Karaman (1992) 4 Cal.4th 335, 348–350
Third Holding:
Imposition of the firearm enhancement undersection 12022.53(b) on count 1 was not unauthorized. An unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case, regardless of the facts. Our criticism of the firearm enhancement in the prior appeal was limited to the manner in which it was imposed rather than the fact of its imposition. Because the challenged enhancement had no nexus to the original illegality in the sentence, we conclude that the trial court erred by imposing the greater enhancement under section 12022.53(d) on this count, in lieu of the lesser enhancement under section 12022.53(b) that it had originally imposed.
We will therefore remand the matter back to the trial court for a full resentencing hearing. While the trial court may reconsider all discretionary sentencing choices under no circumstances should the aggregate sentence be more than the sum of the original sentence and the mandatory increase required due to any Serrato errors.
Authority:
People v. Scott (1994) 9 Cal.4th 331, 354
People v. Hill (1986) 185 Cal.App.3d 831, 834
People v. Trammel (2023) 97 Cal.App.5th 415, 435